Justice and Gender: The Milestones Ahead

Life shrinks or expands according to one's courage.
- Anais Nin

History is clear that sooner or later law must reflect the consensus of society. Equally evident is that over time the consensus of society always moves toward consistency with “objective reality,” with what seems most true in life.

As “women’s nature” appeared no less capable of exercising civil power than that of men, the law bent and reformed itself to provide equal rights for women and men. Society will next gradually absorb the findings of science that sex is a continuous concept. The consensus is already emerging that separate male and female “natures” are, in fact, a myth. People are realizing that male and female physiques are spread across a broad continuum and not separated into tall and strong or short and frail. Indeed, the average difference in size between persons with penises and those with vaginas is about 10 percent, less than almost every other primate, and this small difference is swamped by the differences within each genital group. Social workers are increasingly convinced that the ability of any person to contract for infants, nurture children, and parent kids is far more important than biological reproductive differences. As a consensus on all of these points emerges, the law will again bend and reform itself to eliminate any legal distinction based on sex.

It will take decades to fully indict and quash the apartheid of sex. Certain milestones can be anticipated along the way. The expected battles and final victories are (1) the elimination of sex on marriage applications, (2) the elimination of sex on all other government forms, including birth certificates, and (3) the elimination of sexually segregated public facilities, such as washrooms.

Love and Marriage

One of the biggest battles in gay rights law today is over the right to homosexual marriage. In 1993 courts in the state of Hawaii broke a thirty-year string of judicial decisions adverse to gay marriage when it ordered the state either to offer a compelling reason why it could not permit two women to marry each other or to grant the lesbian couple a marriage license. The court’s reasoning was that the Hawaii State Constitution guaranteed freedom from discrimination on the basis of sex, and that right was being breached by the state’s refusal to marry two persons based on their sex type. The Hawaii decision builds on a trend of other states and municipalities to provide quasi-marital rights, short of actual marriage, to persons of the same avowed sex. The Hawaii decision has been followed with the authorization of sex-blind marriage first in Massachusetts and then, in 2008, in California. As of now, sex-blind marriage has also swept Connecticut, Iowa, Rhode Island, and Vermont.

Typically, state marriage laws provide that marriage licenses will be provided to two persons of different sexes. Based on these laws, marriage applications require that the sex of the person be specified. In a recent case in rural Texas, a judge approved of a marriage between two people with a vagina, because one of them insisted he was a he, albeit with a very small penis. (The Texas judge probably didn’t know he was replaying in variation the famous 1601 French case of Marie/Marin. Marie was sentenced to be either burned alive or strangled to death for the crime of sodomy—in her case, making love to another woman. An accommodating French doctor saved her life by deeming her clitoris a small penis and giving her the male name Marin.) Some attorneys in Texas are now recommending that one of two men who want to marry each other adopt a female identity and claim they have a hypertrophic (very large) clitoris, ectopic (misplaced) ovaries, and vaginal agenesis (unopened vagina). These types of verbal gymnastics should not be necessary to sanctify the love that any two people feel for each other.

For many years marriage applications required not only sex information, but race specifications as well. This was a holdover from miscegenation (anti-interracial marriage) laws, which required that only same-race persons be allowed to marry.



In 1962 a brave interracial couple, the Lovings, wrote a letter to Robert F. Kennedy, then U.S. attorney general, asking for his assistance in getting married in the state of Virginia. The local Virginia court clerk had refused to marry the Lovings because of their mixed race. The couple then went to the District of Columbus to get married and returned home to Virginia to live. Within a couple of weeks they were arrested for violating Virginia’s ban on mixed-race marriages. Upon conviction, which was upheld by the Virginia Supreme Court, their one-year prison sentence was suspended as long as they moved out of the state. The convicting judge declared: “Almighty God created the races white, black, yellow, Malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Bobby Kennedy got the ACLU involved in appealing their conviction to the United States Supreme Court. In 1967, the Court reversed the Lovings’ conviction and unanimously struck down all miscegenation laws as unconstitutionally discriminatory and in violation of the right of Americans to “due process,” that is, to the right to life, liberty, and the pursuit of happiness free of unreasonable state interference. The number of mixed-race marriages has skyrocketed since that time.

At the time of the Lovings’ appeal, more than one-third of American states banned marriages between persons of different races. Just a few years earlier over half the states had banned such marriages. In Guess Who’s Coming to Dinner, the landmark 1967 film about the engagement of an African American doctor (played by Sidney Poitier) to the daughter of San Francisco’s largest newspaper publisher, the doctor and his father, a retired postal worker, have a telling exchange:

“Boy, you don’t know what you’re getting into,” says the father. “Why, in about twenty states you’d be breaking the law and thrown in jail.”

His son responds, “Dad, the problem with you is that you see yourself as a colored man. I see myself as a man.”
A modern-day Guess Who’s Coming to Dinner might again star Sidney Poitier, but this time as the father of a daughter about to be married in Hawaii to another woman:

“Girl, you don’t know what you’re getting into. Why, in about twenty states you’d be breaking the sodomy law and could be thrown in jail.”

To which the daughter might respond, “Dad, the problem with you is that you see me as a female person. I see myself as a person.”

A few years after the Loving decision, another brave couple, Amanda Pederson and Joseph Burton, were offended by the requirement of the District of Columbia that they specify their race on a marriage application. This couple refused to specify their race and resorted to the court system for justice. The District of Columbia of course permitted marriage regardless of race (the Lovings had been married there a decade earlier) but raised all manner of demographic and statistical reasons for its need for race information. The U.S. Supreme Court was not persuaded, and in 1975 the offensive race question was ordered stricken from marriage application forms. The Court noted that asking for information of a discriminatory nature, such as race, on a marriage application was unconstitutional absent a compelling government need for such information.

The foregoing race and marriage cases point the way for litigation in support of sex-blind marriage. It is inevitable that more and more states will decide that the private liberty rights of individuals outweigh any interests of the state in limiting marriage based on the sex of the applicants. As state marriage laws are found sexually discriminatory, and hence unconstitutional, legislatures will need to redraft marriage laws. The typical twenty-first-century marriage law will say that marriage licenses will be issued to two persons who are not already married and are of legal age.

For a while, marriage applications will continue to ask for the sex of the applicants. Then, within the next decade or two, another offended couple like Pederson and Burton will challenge the need for this information. They will point out, as did Pederson and Burton, that sex type, like race, makes no sense to them. They will explain that it is as discriminatory to refuse to marry persons for whom sex type is not a meaningful question that can be answered honestly as it was to refuse marriage based on race or color. Courts will inevitably decree that sex information not be requested on marriage applications.

The sex-blind model provides a lot of new work for lawyers in the area of love and marriage. Each of American’s fifty states and each of the two-hundred-plus countries in the world have their own marriage laws. These battles will have to be fought one by one.

The ideal plaintiffs may be transsexuals who refuse to specify sex on a marriage application, claiming that they are neither male nor female. When the clerk refuses to issue a marriage license, the issue becomes ripe for judicial appeal. The transsexuals will, of course, argue that they are citizens with as much right to marriage, liberty, and the pursuit of happiness as any other person. The transsexual plaintiffs will cite Loving v. Virginia as precedent. Ideally the Court will both order the couples married and strike down the requirement that the sex of an applicant be specified on marriage applications. Such a decision than opens the door to sex-blind marriage.

It is interesting that the paradigm of sexual continuity renders moot the issue of gay marriage morality. Since everyone has a unique sexual identity, there is actually no reality to being either heterosexual (attracted to the opposite sex) or homosexual (attracted to the same sex). We fall in love with persons, not sexes. We are all, in fact, transgendered—with unique sexual identities and capable of falling in love with any other person of unique sexual identity. Most of us naturally follow the prescribed course of declaring ourselves as one of two sex types and then courting persons of either the same or opposite declared sex type. But just as declaring and sticking to one’s race or ancestors’ nationality is beginning to look quaint, the same watershed will come to sex.

Government and Sex

Throughout our lives one or another government agency demands that we declare our sex to be either male or female. This apartheidlike regime begins with birth, continues with school forms, is part of any government assistance or census papers, and concludes with death. As noted above, even in the case of marriage there is no logical basis for forcing people to declare sex when the reality is that people are not either male or female; we are just socialized into maleness or femaleness. Why should any government agency care what the sex of a person is, when the law makes it illegal to discriminate on the basis of sex?

The government’s best answer to its requirements for sex information is its need to collect demographic statistics. But this is an evasive answer, for the government does not need to spend its money differently or decide its policies differentially, based on the sex information that it collects. Government agencies might respond that they need to alert the public to the alarmingly high percentage of welfare recipients that are female or that the law demands that women receive preferential treatment in certain areas, such as in government contract set-asides for women-owned businesses.

Supreme Court justice Ruth Ginsburg earned her greatest fame as a litigator in eliminating military assistance benefits that discriminated in favor of women. Justice Ginsburg realized that all discrimination hurts, including allegedly favorable discrimination. What every population subgroup needs is to be treated as persons, not as demographics.

In the case of Frontiero v. Richardson, Joseph Frontiero was the student spouse of Sharron Frontiero, a U.S. Air Force lieutenant. Federal law provided that female spouses of servicemen were automatically entitled to housing and medical benefits but that male spouses were not. Justice Ginsburg argued that arbitrary governmental classifications by sex were just as odious as those based on race or ethnic origin and that they put women not on a pedestal, but in a cage. She pointed out that for one hundred years the Supreme Court followed a precedent case that could have come out of the Middle Ages:

Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. (Bradwell v. State, 1873)

Ms. Ginsburg urged the Court to take a strong stand against such sexist attitudes and to provide male spouses of soldiers the same benefits as female spouses enjoyed. In 1973 the Supreme Court agreed, striking down the discriminatory benefits law as unconstitutional and disconnecting itself from its one-hundred-year old paternalistic attitude. The same approach should be taken with regard to any government program that gives out benefits on the basis of sex—in the long run, that type of assistance hurts more than it helps.

The government’s other alleged reason for sex information, pure demographics, is handled easily in one of two ways without unduly perpetuating sexual apartheid classifications. First, the government can simply add a third “other” or “transgendered” box to sex questions so that people are not forced to be “male” or “female.” The “other” category is already the fastest-growing racial category in the national census. While the “transgendered” term is not well known now, the experience of the African American community is instructive on how quickly a new identity can spread. Gallup has surveyed African Americans for their preferred identity since 1969. In that year virtually no one identified as African American, but 38 percent identified as Negro, 20 percent as Colored, and the rest as Black or Afro-American. Twenty years later, in 1989, 66 percent identified as Black and 22 percent as African American. Today an almost equal number of persons identify as Black and African American. It is clear that identities can change quickly among millions of people. Transgendered may well start to replace the traditional male/female labels, if given a chance.

A second alternative is for the government to drop the sex question altogether and rely on public opinion polls, media accounts and academic reports of society’s changing sexual demographics. With so much of public affairs, politics, marketing, and social science already dependent on population sampling companies, there seems to be no reason for the government not to use these firms. Indeed, it may very well cost the government less to collect its demographic information privately, in a competitive bid process, than to do so using its own employees and computers.

Birth certificates present a special case of government-mandated sex information. Here the government could also argue that this information must be collected for health/medical reasons. For example, it might be said that children have a developmental reason to be brought up as one sex or the other, or that doctors need to be alerted to sex-differentiated diseases.

These same kinds of arguments were raised for specifying race on birth certificates and were found totally specious. Whether a child is brought up black, white, or race free is a parental option. Neither the parents nor the kids need a birth certificate to tell them what they look like. Similarly, whether a kid is brought up male, female, or sex free should be a parental option, at least until the children express their own gender will. No one needs a birth certificate to tell them what their genitals are. Indeed, hundreds of thousands of transgendered persons vigorously adopt sexual identities clearly different from what is stamped on their certificates of birth.

It is also medically inaccurate to specify sex, as opposed to genitals, on a birth certificate. Sexual identity is not established until three or more years after birth. For thousands of years it was assumed that strict genital dimorphism dictated absolute differences in brain sex—separate male and female natures. We now know that is false. The brain is not even interconnected enough at birth to establish sexual identity, and those interconnections are influenced largely by environmental upbringing plus random genetic variation. So it is as medically wrong to establish sex at birth based on genitals as it would be to establish “white culture” or “black culture” based on birthed skin tone.

The bedrock reason for the government’s insistence on specifying sex at birth is probably to prevent same-sex marriage. But, as noted earlier, this kind of sexual apartheid is crumbling as surely as did the long-lived efforts to prevent different-race marriage. As sex data becomes irrelevant for marriage and found unnecessary for government assistance, there will no longer by any basis to mandate this data on birth certificates.

As with other aspects of government and sex, the debunking of male/female apartheid at birth will likely occur through legal challenge. Plaintiffs are needed who don’t want their kids sex typed at birth. These plaintiffs must be supported by a medico-legal team that is able to prove sex is wide open at birth, sex typing is repressive, and sex typing serves no legitimate government purpose. A court order to the local vital records department to keep sex off the birth certificate would be a significant hole in the edifice of apartheid. Even one such child turns sexual apartheid on its head — passport offices, motor vehicle departments, and marriage bureaus would all have to bend their rules to accommodate this gender pioneer. And if the first gender pioneer is followed by thousands of others, then the edifice of apartheid will not only bend, it will break.

Another legal route for change is to prepare a model gender-free vital records code that eliminates sex typing from all government vital records (birth, marriage, death). Committees of national and international lawyers are working constantly on model laws in many different fields. A model vital records code would be presented to legislative committees as a fairly innocuous means of avoiding inadvertent sex discrimination. At the same time, this model code would automatically eliminate sex typing at birth, the most vital record of all.

The Bathroom Bugaboo

If the law does bend and reform itself to eliminate the legal separation of people into males and females, what will become of sex-separate lavatories? Do not the genitals of a citizenry become a proper interest of the sate when it comes to exercising excretory functions in public buildings? Is not the public restroom, with its separate urinals for men and makeup mirrors for women, proof that the apartheid of sex is necessary?

Questions such as these were also raised when African Americans sought equal rights in the 1950s and 1960s. Ubiquitous “whites only” and “coloreds” signs hung in front of separate restroom facilities throughout much of the South. Many people were enlightened enough to share a bus seat but drew an apartheid line on sharing a toilet seat.

In fact there is no need for sex-separate restrooms, and this can easily be accomplished without violating personal privacy. All that is needed is to remove apartheidlike “male” and “female” signs from the outside and install only closed-door stalls on the inside.

Several quasi-legal objections might be raised to unisex lavatories:

• Persons with penises will be discriminated against by losing access to “quick and dirty” stand-up urinals.
• Persons with vaginas will have to face toilet seats wet with urine from “sloppy shooters” or those too inconsiderate or lazy to lift a toilet seat.
• There will be an increase in restroom rape by placing people of different genitals together in a place where their genitals are exposed.

Starting with the alleged discrimination against persons with penises, this problem can be resolved immediately by placing a certain number of stand-up urinals inside closed-door bathroom stalls. Yet a better solution, however, is to install only sit-down toilets in public lavatories. Each sit-down toilet is usable by all genitalia, whereas stand-up urinals are designed for only one type of genitalia. So, in fact, it is stand-up urinals that are per se discriminatory. As to the extra thirty seconds it takes to drop one’s pants and sit down to pee—this seems a very small price to pay to ensure equal access to all restrooms by all people.

Of course, some persons may be too lazy to sit down to pee, or even to lift a toilet seat, or to aim halfway straight, thus imposing a seat-cleaning or crouching obligation on the next stall occupant. The solution to this problem is education. From childhood we need to train all children that it is civilized to sit down to pee, as part and parcel of a sex-free education. Today we train boys to stand up and pee as a sex discriminator. As every parent knows, the natural progression is from diapers to sit-down urination. Stand-up urination for people with penises is a way to say males are different (and better) in a patriarchal society.

A second possible solution is technology. Visitors to O’Hare Airport will recall that a push-button device on all toilets automatically cleans the toilet seat and dispenses a sanitary seat cover. Simple signs in front of each toilet, reminding the occupant to please sit down, may also be effective.

Restroom rape is a serious problem today, even with sex-separate bathrooms. It is pure speculation as to whether unisex bathrooms would increase restroom rape or decrease it by converting a “women’s space” attractive to rapists into a non-sexed public place. Generally rapists prefer seclusion. The thought that persons of any sex can enter any restroom at any time should discourage sexual violence in restrooms.

Heightened security, such as better night lighting, is one of the best tools to diminish rape. For about the cost of a single modern urinal, each public restroom could also be equipped with a continuous loop camera high above the exit door. This would have the same effect on discouraging restroom crime as when such cameras are installed elsewhere. If we place as much value on a person’s life as we do on a convenience store cash box or an ATM machine, then legislators should mandate automatic video surveillance of public restrooms. Legislation such as the Violence Against women Act (VAWA) sets a valuable precedent for spending federal money on facilities such as better outdoor lighting to enhance public safety.

The “bathroom bugaboo” presents no obstacle to the legal elimination of sexual apartheid. But today the law continues to enforce a separation of the sexes down to the urinal. In 1990 legal secretary Denise Wells was arrested in Texas for using the men’s restroom at a concert instead of waiting in a huge line for the women’s restroom. She was found not guilty by a mixed male/female jury and is now an advocate of “potty parity.” A dozen states mandate this feature in new buildings, ranging up to a required ratio of four to one female-to-male toilets in some California buildings. Laws requiring unisex lavatories on the European model, with adequate security features, would be less expensive to comply with and would also provide much relief to women faced with the indignity of long waits for a basic biological function. Such a change would also offer minimal consideration to dads out on the road with infants. Today the men face the insult of being unable to comfortably change their kids’ diapers in private, while changing areas are often “assumed necessary” in women’s restrooms.

The bathroom bugaboo is a legal problem because, as with race, restroom segregation reinforces social discrimination. It took laws to eliminate “whites only” lavatories. It took laws to mandate handicapped toilets. And it is taking laws to redress inadequate bathroom facilities for women. The best way to redress this harm, and to help cleanse society of sexual apartheid, is to pass laws that mandate secure, reasonably clean, unisex restrooms for all.

The new paradigm of a natural continuum of sexual identity provides a lot of work for lawyers in dismantling the old but omnipresent apartheid of sex. The elimination of sex as a basis for marriage, a label at birth, and a recurring checkbox in life will not come about easily. But the rewards are well worth the effort. Sexual identity lies at the heart of human expression. Eliminating the sexual shackles of today will spawn a revolution of gender creativity. All human beings will be able to live happier, more enriched lives.

Papering a Transhuman

In this chapter we reviewed the successful efforts of the past century to remove race from birth and marriage certificates, as well as the legal challenges involved in replicating that achievement with sex. The coming wave of transhuman persons presents a more fundamental issue: does someone without a human form and without a natal birth have any rights at all? What pathway to citizenship is there for someone with the mind of a human but a purely virtual or artificial body?

A likely scenario over the next few decades is that people will copy every greater portions of their mind into software. These software analogs will work, shop, and communicate on behalf of their flesh masters. The more autonomous and life-like these software analogs are, the more useful they will be, and hence market forces will make them increasing human-like. At about this time some human masters will suffer bodily death, but will claim that they are still alive in the guise of their software analogs. In essence, these transhumans will claim to have had a “mind transplant” to save their life not unlike the heart and kidney transplants that save so many lives. Lawsuits will surely ensue over (i) whether or not a death certificate should be issued, (ii) whether there is an estate, i.e., does the transhuman or its flesh descendants control its property, and (iii) whether the transhuman can get married and if so as which sex since the old body is gone.

There are in fact reasonable “non-formist” ways to determine if a transhuman is really human, and thus deserving of a birth or marriage certificate. For example, psychologists certified to determine whether someone adequately demonstrates consciousness, rationality, empathy and other hallmark human traits could interview transhumans. Should two or more such psychologists agree as to the transhumanist’s humanity, the virtual person should either be permitted to continue the life of their biological original, or, if newly created, be granted a birth certificate and citizenship. It would be silly to ask after the transhuman’s sex as virtual beings are quite transgendered.

There is nothing too unusual about relying upon psychologists to tell us whether someone’s frame of mind is authentic or a fake. They are called upon to do this in many criminal trials, where the dispute is over the defendant’s state of mind. They are also called upon to do this in authorizing surgeons to perform genital-change surgery. In this latter instance the psychologists interview transsexuals to determine whether they are sincere in their mental sense of themselves as another sex. If so, then surgery and new legal documentation under the changed sex is authorized.

Transhumans will want to be documented; there are too many disadvantages to being undocumented. Society will be worried about providing birth certificates and hence citizenship to people without a body. Everyone will look to the historical precedents of recognizing people as persons rather than colored persons, and people as people rather than as gendered people. The logical next step is for some young lady engaged to a virtual transhuman to tell her exasperated father “Dad, the trouble is that you see yourself as a flesh person and I see myself as a person.” Provided that certified psychologists agree that the fiancée is a real person, with the autonomy, rationality and empathy we expect of humans, then sooner or later the Courts are sure to agree.

Billions of Sexes

The human face is really like one of those Oriental gods:

a whole group of faces juxtaposed on different planes; it is impossible to see them all simultaneously.
- Marcel Proust

Billions of Sexes

There are two sexes, male and female, right? Wrong! In fact, there is a continuum of sex types, ranging from very male to very female, with countless variations in between. This startling new notion is just now beginning to emerge from feminist thinking, scientific research, and a grass-roots movement called “transgenderism.” In the future, labeling people at birth as “male” or “female” will be considered just as unfair as South Africa’s now-abolished practice of stamping “black” or “white” on people’s ID cards.

What is Male and Female

There is little that we take more for granted than the separation of people into two sex types, “male” and “female.” Yet when we try to define the difference, problems and inconsistencies arise immediately.

At birth a cursory examination is made of a baby’s genitals. If the doctor sees a small penis, the parents are told, “It’s a boy!” A small vagina, “It’s a girl.” From this initial declaration, most people are sent off on two different tracks in life. Those tracks are called “gender development.” Gender is the set of different behaviors that society expects of persons labeled either “male” or “female.” Is the significance of being born with either a penis or a vagina so great that a person’s future destiny should be dictated accordingly? Would we consider predetermining a person’s life path based on either accidents of biology, such as birth weight, eye color, skin tone, or hair texture?

Of course, there was a time when accidents of birth determined everything about a person’s life. And in many ways accidents of birth biology are still paramount. But the course of civilization is to provide all persons with equal opportunity regardless of their birthed biology.

Up through the eighteenth century, the doctrine of “primogeniture” held that the first son to be born automatically inherited all of a family’s land. This concept was banned around the time of the founding of the United States, a period when land ownership was equivalent to power. Founding patriots such as Thomas Jefferson and Noah Webster argued successfully that primogeniture was undemocratic because it locked individuals into conditions of inequality based on the mere accident of birth order. In time, the once-paramount sociolegal classification of society into firstborn sons, and all others, became completely irrelevant.

Up through the nineteenth century “illegitimate” children could be disavowed of almost all legal rights. It took Supreme Court decisions to finally ban discrimination based on the marital status of a person’s parents. Since the marital status of one’s parents is wholly irrelevant to a person’s humanity, we would be shocked today if people’s life paths were sharply limited by when or whether their parents stood before a judge and exchanged vows. But at one time, even in America, that’s how it was.

Well into the twentieth century, being born with an enriched-melanin skin tone meant being channeled into a menial life. Today we recognize this as fundamentally unfair. Law, and gradually society, accepts the choice of apparent African Americans to work in any profession or to identify as nonracial citizens. Similarly, there are young Europeans who identify as dreadlocked Rastafarians, Asians who have adopted African culture and increasing numbers of persons of all geographic backgrounds who identify themselves simply as human.

Gradually, “immutable race” is becoming “choosable culture.” The analogy to sex is unmistakable. Manhood and womanhood can be life-style choices open to anyone, regardless of genitalia. It is law and custom, not biology, that makes birth order, birth parents, skin tone, or genitals relevant to one’s ability to choose a culture, perform a job, or adopt a life-style. Liberated from legal constraints and archaic stereotypes, our social identity can flow from our soul and our experiences, not from our anatomy and our birth status.

The course of progress in civilization has been to render as irrelevant as possible the birth status of a particular individual. As this is accomplished for categories of birth status—firstborns, children of single parents, children of one or another religious or ethnic group—those very categories begin to lose rigid social meaning. This is because the true meaning of any category of persons is but the meaning assigned to those persons by law and society. Ultimate equal opportunity means that from birth on, people are persons first, free from then on to choose such cultural and social affiliations as they like. Ultimate equal opportunity means to be born free from any label: child/bastard, black/white, or male/female.

The shape of one’s genitals would appear to be a most arbitrary basis for determining to which of two fundamental human classes a person should belong. How did we arrive at this situation? Searching back into prehistory, our ancestors recognized that genital shape was a systematically recognizable difference among humans. Categorizing people based on genital shape was a simple method for establishing a division of labor among early human communities. Childbearing and child-nurturing capabilities of women further led our ancestors to establish a genital-based division of society. As civilization advanced, extensive gender-based rituals and customs reinforced the ancient genital-based division of society into men and women.

Today progressive people accept as self-evident that genital morphology (shape) is irrelevant to one’s productive role in society. Childbearing and child nurturing are a matter of choice. Hence, whatever relevance genital shape had for a division of society into men and women in the past, those reasons and traditions are obsolete as we move into the twenty-first century. Unfortunately, the gender-based rituals that grew up around genital distinctions still weigh heavily on our heads. As noted scientist Richard Lewontin has observed, “The immense superstructure of attitude and social power that has been built historically on the base of biological [sex] differences has long ago become independent of the actuality of that biology.”

Despite the apparent irrelevance of genitals to a person’s capabilities, the legal system in the United States defines men as people with penises and women as people with vaginas. This has been made clear in several cases dealing with transsexuals—persons who claim to be women despite their birth with a penis, and persons with vaginas who claim to be men. In cases dealing with marital, business, and criminal rights, courts have regularly held that one’s sex is determined by one’s genitals. For example, a person with a penis who has lived for twenty years as a woman will not be allowed to marry a man. But a person who undergoes a surgical transformation of the penis into a vagina will be immediately allowed to marry a man.

So, while men and women are defined by their genitals, the significance of that genital difference no longer justifies the social and legal division of society into two classes of people. The division of labor in an advanced society is not based on sexual status. Hence, why bother to divide people form birth into two groups, men and women?

Are Genitals But the Tip of the Iceberg?

It might be argued that genitals are but the tip of the sexual-differentiation iceberg—don’t women have XX chromosomes and men XY? Doesn’t this chromosomal differentiation give rise to a wide variety of clear differences between the sexes—hormonal balance, reproductive capabilities, physical abilities, mental thought patterns? Surprisingly, the current scientific answer to these questions is increasingly no, or at least ambiguous.

First, it is not true that all legally defined women are XX and all legally defined men are XY. Hundreds of thousands of people are born with all manner of chromosomal variations, including XXY and X, among others. The Olympics has ceased using chromosomal tests for a second X as a means of disqualifying women, after certain athletes—namely, persons with a vagina, a lifelong “female” gender identity, and but one X chromosome—were cruelly disqualified right at the quadrennial event. Similarly, the famous transsexual Renee Richards was ordered by a judge to be accepted into women’s tennis competition despite her XY chromosome makeup. The judge found her no different from any other ovariectomized and hysterectomized woman. Chromosomes are an unreliable means of classifying society into two sexes. They argue better for a continuum of sex types.

Second, sex based chromosomal differentiation appears to be relevant only in triggering different amounts of estrogen and testosterone. Both men and women produce both estrogen and testosterone, although in differing amounts. This further shows the chromosomal similarity of all people. Portions of the X or Y chromosome appear ultimately to govern the relative amounts of estrogen and testosterone produced, creating a continuum of “male” and “female” possibilities. When certain hormonal thresholds are reached, “male” or “female” reproductive organs are created. The specific levels of hormonal production, and their timing of release, are different for each person and result in a continuum of “maleness” and “femaleness” that may affect thought patterns and body shape. For example, the leading explanation of transsexuality is that a person’s chromosomes triggered levels of testosterone and estrogen that resulted in the genitals of one sex and the thought patterns of the other sex. Hence, not only the variety of chromosomal combinations, but also the actual operation of the chromosomes themselves, argues for a continuum of sex types.

Finally, it is quite clear that in modern society sex chromosomes would be a specious basis for separating people into two classes, male and female. If we were to separate people because different kinds of chromosomes create different kinds of reproductive capabilities, how would we account for the legitimacy of biologically or intentionally infertile persons? In a February 1994 review of in vitro fertilization, Scientific American estimates that there are three million biologically infertile couples in the United States alone. Clearly ability to reproduce in one manner or another would not create a consistent category of male and female persons.

If we were to separate people because different kinds of chromosomes create different hormonal states, how would we account for the legitimacy of the millions of people who alter their hormonal balance through daily pharmaceutical hormones? In this regard it should also be noted that as people age, their hormonal levels continually decline, creating a convergence between “male” and “female” hormone states in mature adults. Absent estrogen replacement therapy (ERT), postmenopausal women often begin to sprout facial hair and acquire deeper voices. Older men and women begin to look more “transgendered,” more like each other, than in their youth. Such are the transient effects of chromosomes and resultant hormonal states.

It is true that there is a lot of biochemistry behind a set of genitals. Nevertheless, that biochemistry is as irrelevant as the genitals themselves as a basis for categorizing people into two classes. There is no hard and fast biochemical line that separates men from women—just a continuum of biochemical levels with most women toward one end, most men toward to the other, and much overlap and variance in between. Professor Anne Fausto-Sterling, a Brown University geneticist, recently observed that “sex is a vast continuum that defies the constraints of categories.” Behind her observation was new research showing that as many as 4 percent of all births are to some extent “intersexed,” meaning that the infants have portions of both male and female sex organs (often internal and hence generally undiscoverable). Even the presence of nipples on men is evidence of some amount of universal intersexuality.

Chromosomes provide no logically consistent basis for creating sociolegal categorizations of people into “male” and “female.” There are too many exceptional chromosomal combinations, and the net results of the chromosomes—hormonal levels—both vary continuously across all people and may be altered easily by pharmaceuticals. While there are systematic chromosomal differences among peoples from any gene pool—Semitic, Asian, African, Nordic—we would not use such differences as a basis for creating separate legal categories for each gene pool. It would appear equally absurd that such a mundane, variable, and alterable thing such as hormone levels could provide the basis for a fundamental division of humanity into two subspecies, male and female.

Thought Patterns

It might also be argued that different sex types are justified because men and women think differently. For example, as noted above, sex researchers believe that transsexuals have genetically induced “female” (or “male”) thought patterns but “male” (or “female) genitals. Also, authors such as Anne Moir (Brain Sex) have propounded the view that male and female brains are systematically different—leading to different behavior patterns in boys and girls and in men and women.

There are three flaws with using brain sex differences to justify society’s apartheid of sex. First, as Dr. Fausto-Sterling observed, genetics creates a broad variety of sexual diversification. If her statistic of up to 4 percent of the population being physically intersexed (having portions of both sexes’ reproductive tracts) is correct, it’s likely that at least that number of people are also “mentally intersexed” —possessing both male and female thought patterns. No legal categorization of people can be valid if it leaves out such a significant percentage of the population: people can’t be only male or female if 4 percent of the population is neither or both! Indeed, even “brain sex” proponent Anne Moir concedes that “it is possible to be female and have some male attributes, and this simply depends on the presence or absence of the male hormone during certain stages of pregnancy.” If sex is in the brain, and the brain can be a blend of both sexes, what absolute meaning do “male” and “female” have? None, other than the rigid either/or division imposed upon us form birth by society, law, and tradition.

Second, it is far from proven that any anatomical differences in men’s and women’s brains account for behavioral differences. The overwhelming amount of behavioral differences between men and women are learned through a socialization process that insists “act like a girl” or “think like a boy” or pretend to. Anne Moir cites several experiments in which infant girls are much more responsive to colors and sounds than are infant boys. But no one has shown that these knee-jerk reactions have an significance for the complex behaviors associated with job performance and other life pursuits.

Finally, even if there are statistically significant differences in the way most males and females react to stimuli, this does not mean that people should be categorized as males and females for social, economic, or legal reasons. There is no doubt that certain people are gifted from birth with various mental, musical, artistic, or physical abilities. But such relative abilities do not entitle these persons to be legally categorized into a special class of people. In an egalitarian society we recognize that what people actually do with their abilities is far more significant that what abilities they may have.

In essence, a society works much better if biological differences among its subpopulations are ignored or minimized than if those differences are magnified and classified. On average, individual initiative far outperforms biological inheritance. The differences in men’s and women’s thought patterns are at most only statistically significant, not absolute sex differentiators. And as for the persons who do have “male”-type or “female” –type thought patterns, society has learned that it is counterproductive to classify its citizens based on inherited characteristics. Finally, “male” and “female” thought patterns are probably an especially specious basis for sociolegal categorization. This is because such thought patterns are simplistic in nature and easily rendered meaningless in the complexities of everyday life.

New Feminist Thinking

Professor Sylvia Law, a noted legal scholar, recently argued that “a core feminist claim is that women and men should be treated as individuals, not as members of a sexually determined class.” This is also a theme that Supreme Court justice Ruth Bader Ginsburg emphasized in her lawsuits as a women’s rights advocate: “Nurturing children in my ideal world would not be a woman’s priority, it would be a human priority.” This new feminism rejects sex-based differences among people as wholly irrelevant to any socioeconomic purpose. As Simone de Beauvoir noted some four decades ago: “One is not born, but rather becomes, a woman.”

It is but a short step from the new feminist thinking to our thesis. If sex-based differences are irrelevant, then what is the point of saying one is either male or female? While there is often a medical reality to sex-based differences, this does not justify a carryover of sex typing to the social, economic, and legal spheres of life. There are innumerable medical differences among people, such as diabetes or propensity to heart disease, but this does not justify the creation of a legal straightjacket of difference about such medical conditions.

The feminist insistence upon seeing individuals as individuals, regardless of sexual biology, can now be carried to its next logical step: individuals are individuals, not sex types. Labeling people as male or female, upon birth, exalts biology over sociology. Instead the new feminist principles inspire us to permit all people to self-identify their sexual status along a broad continuum of possibilities and to create such cultures of gender as human ingenuity may develop.

The bimodal segregation of people into men and women has oppressed women from the time of the ancients. As Margaret Mead observed in her 1949 treatise Male and Female, the effect of creating artificial expectations for each sex is to “limit the humanity of the other sex.” As we gradually free ourselves from stamping newborn babies as one sex or the other, gender expectations will become self-defining and the full cultural liberation of all people can occur at last.

Scientific Developments

Soon after feminism opened academia’s eyes to the reality that people with vaginas were no different socioeconomically from people with penises, scientific research began to accumulate data that blurred even the biological differences between supposed sex types. As of 1990 Johns Hopkins University sexologist Dr. John Money was able to summarize research in this area: “Despite the multiplicity of [apparent] sex differences, those that are immutable and irreducible are few. They are specific to reproduction: men impregnate, and women menstruate, gestate, and lactate …. However, in light of contemporary experimental obstetrics, being pregnant is no longer an absolutely immutable sex difference. The hormones and stimuli required for normal fetal development are intrinsic and within the early embryo.”

Dr. Money was referring to recent experiments in which male baboons were made to serve as surrogate mothers for zygotes fertilized in the test tube. The embryos grew in a fatty cavity near the intestines and were delivered by cesarean section as healthy infants. In a similar vein, Dr. Money reported on ectopic pregnancies in women whose wombs had previously been removed and on zygotes that implanted themselves in the small intestine and grew their own placenta—with the implication that a man could have carried the embryo as well. All of these cases strongly suggest that even nurturance of a child, with technological help, is not an absolute biological imperative of any one subclass of humans.

Further scientific advances in the areas of genetic engineering and neonatal care foretell the likelihood that a zygote might be formed from the chromosomes of two women or of two men, assuming the necessary biochemical codes that enable cellular union are learned. Once this scientific threshold is passed, the axiom that “men impregnate” will no longer be strictly true. Of course, one need not wait for this science-fiction scenario to occur: as long as sperm banks and in vitro fertilization exist, the relevance of men’s monopoly on impregnation disappears. Impregnation becomes a commodity. And as long as surrogate motherhood is legally available, the relevance of women’s monopoly on gestation disappears. Gestation becomes a commodity.

Scientific developments have blurred the differences between supposed sex types to a greater degree than most people imagine. Feminism tells us that the differences between sexual biology are irrelevant to socioeconomic behavior. And science tells us that the differences between sexual biology are remarkably few and disappearing rapidly.

It might be argued that science masks true sexual differences, since men do impregnate naturally, and women do gestate and lactate naturally. But this argument seems unpersuasive: it could just as well be said that since most men are stronger than most women, men must do “heavy work,” and since women lactate naturally, they must be the ones to care for infants. Yet thanks to science and technology, heavy work can be done with the pushing of buttons, and infant formula can be dispensed from a bottle. Science did not mask “true” differences between sexes; it just made those differences irrelevant in everyday life, allowing us to achieve the continuum of sex types that are possible today.

Transgenderism

A grass-roots movement called transgenderism developed during the 1980s. The guiding principle of this movement is that people should be free to change, either temporarily or permanently, the sex type to which they were assigned since infancy. Transgenderism makes manifest the continuum nature of sex types because even if a sex type was real birth, it can now be changed at will during one’s life.

There are two main types of persons in the movement: transsexuals and cross-dressers. Transsexuals use sex hormones and sometimes plastic surgery to change their anatomy toward the other sex type. The results are so persuasive that rarely can a “new man” or “new woman” be distinguished from a biological original. Over a thousand persons a year actually have sex change surgery, and many more than this number simply use hormones to change their facial hair, voice, and physique. What sex type are these persons? The law calls them the sex of their genitals, but in reality they are occupying a vast middle ground on a continuum of sex types.

The cross-dressers use attitude, clothing and perhaps makeup to give the appearance of belonging to the other sex or to an androgynous middle ground. Most modern women may be considered cross-dressers since they often wear clothing normally intended for men. What is a new phenomenon is the rapidly rising number of men who wear women’s clothing. Because a male-dominated society frowns on its members mimicking the “inferior” female class, male cross-dressers are usually deep in the closet.

In questioning why there is a growing transgenderism movement, we reach to the heart of the question of sex typing. Transgendered people of all types normally report that they feed a need to express a gender identity different from the one society associates with their genitals. Leading psychologists explain this need by positing that the transgendered person’s neonatal brain was at least partially feminized (or masculinized) while their genitals were masculinized (or feminized). But if the new feminism and scientific research is correct, there are no “male” and “female” brains. Even if there were, is it reasonable to posit that brain patterns can dictate a need to wear one or another type of clothing? Do all the women who wear blue jeans and T-shirts have masculinized transgendered brains?

A more likely explanation is that sex is a continuum along which people, if allowed, will flow naturally to a comfortable resting point. What that resting point is depends upon the same complex of mental propensities and chance socialization that leads people to adopt one or another career, hobby, or religion. It is a matter not of “male” and “female” brains, but of chance orientations toward primal responses such as “aggression” or “nurturance,” limited by social pressures. Modern female cross-dressing represents gender creativity unconstrained by social rejection. Male cross-dressing is rare because society frowns on male gender creativity.

For most people society’s gender rules are so powerful that they simply go with the flow. But in every society there are the free spirits, the stubborn, and the insistent. In the 1960s they fought for civil rights. In the 1990s they fight for gender rights. The grass-roots transgender movement represents those people who are brave enough to risk some opprobrium to explore the gender continuum. Once that opprobrium is eliminated, the ranks of gender and sex-type explorers is sure to increase manyfold.

The Apartheid of Sex

We live under an apartheid of sex. At birth we are cast into a sex type based on our genitals. From then on we are brainwashed into a sex-type-appropriate culture called gender. Women can mimic (but not too much) the powerful entrenched men. But men who try to be “womanish” face the kind of vicious scorn reserved for traitors or the humiliation accorded masters who identified with slaves.

Like the apartheid of race, blurring of class boundaries is the gravest offense because it challenges the division of reality. Hence the old feminist doctrine of “separate but equal” was more acceptable to the male power structure, because they knew that it would never occur. But the new feminist doctrine of sexual continuity is threatening—it destroys the male-dominated power structure completely. If there are no hard and fast sex types, then there can be no apartheid of sex. If there is no apartheid of sex, then there is no entrenched birthright of power—people must achieve on their own. To men threatened by economics and social survival, loss of birthright superiority is frightening.

The apartheid of sex is every bit as harmful, painful, and oppressive as is the apartheid of race. When people are categorized at birth into a sociolegal class on the basis of chance biology, they will be socialized into a segregated culture. Once they are so socialized, human potential will be repressed, for the mind does not know boundaries except for those imposed upon it from outside. Our legacy of sexual apartheid is countless millennia of female oppression and male frustration, of gynacide and warfare.

The apartheid of sex is too ancient to be dismantled overnight. But there are concrete steps that can start the process of liberating humanity’s future, among them:

• Adopting resolutions in the psychological and medical community to the effect that sex in humans is a continuous variable, a complex of phenotypic and genotypic factors as unique as one’s fingerprints. While male and female categories are useful to group biological characteristics for medical purposes, these same categories have socially detrimental effects when used outside the field of medicine.
• Adopting laws that prohibit the classification of people according to sex type except for bona fide medical purposes.
• Adopting educational curricula and entertainment programming that encourage the concept of self-defined sex and flexible gender behaviors.

Sex should really be the sum of behaviors we call gender—an adjective, not a noun. People should explore genders. When they settle on a set of gender behaviors, the name for that set describes their sex. There are billions of sex types: from Rambo to Oprah, from Madonna to Prince, from deep blue to blood red, and a vast rainbow of androgynous possibilities in between. The important point is that gender exploration should come first, through free choice, and that sex is just the label for one’s chosen gender.

Today we go about the matter of sex ass backward. A male or female label is first imposed upon us without choice. We are then trained to adopt a set of appropriate gender behaviors, whether we like them or not. We have some flexibility in our particular choice of gender behavior but not much choice, lest we fall afoul of the apartheid of sex. However, feminism, technology, and transgenderism have debunked the myth of a “male and female” world. Life has much more gender potential than we can imagine.

As we break free of the chains of sexual apartheid, we will establish a new human culture of unparalleled creativity in personal development. From homo sapiens, literally the “wise man,” shall emerge our new species, persona creatus, the “creative person.” From the subjugation of women shall emerge the sensitization of men. And from the apartheid of sex shall evolve the freedom of gender.

Persona Creatus

A new species implies a very fundamental break with the DNA-based definition of homo sapiens. Yet, as indicated above, we have already made that fundamental break as a consequence of technological changes in the way we live and reproduce. Our DNA no longer dictates all aspects of our individual survival, for if it did near-sighted individuals would be gone, eaten by predators they could not see. Our DNA no longer dictates our ability to pass on our genes. In vitro fertilization with or without embryo transfer routinely provides reproduction for hundreds of thousands of infertile couples.

The rise of transgenderism provides sociobiologists with evidence of a new species. An important part of most species’ signature is the characteristically gender dimorphic behaviors of their members. However, as noted above, thanks to culture and technology, humans are leaving those gender dimorphic behaviors behind as they come to appreciate the limitless uniqueness of their sexual identities. As our creativity has blossomed, we have matured from homo sapiens into persona creatus.

The greatest catapult for humanity into a new species lies just beyond the event horizon of transgenderism. Based upon our rapidly accelerating ability to imbue software with human personality, autonomy and self-awareness, a movement of “transhumanists” have joined transgenderists in calling for the launch of persona creatus. The basic transhumanist concept is that a human need not have a flesh body, just as a woman need not have a real vagina. Humanness is in the mind, just as is sexual identity. As software becomes increasingly capable of thinking, acting and feeling like a human, it should be treated as a fellow human, and welcomed as a fellow member of the technological species persona creatus.

The biologist will insist that members of a common species be capable of producing fertile offspring, and so it is for transhumans and persona creatus. Reproduction will no long necessarily occur, however, via joined DNA. Instead, people of flesh will upload into software the contents and processes of their minds. Think of this as taking all of your digital photos, movies, emails, online chats, google searches and blogging to the next level, and merging it with “mindware” that can replicate how you think, feel and react based on the huge digital database of your thoughts, feelings and reactions. Once we have thus digitally cloned our minds, new digital people can be produced by combining some of our mindware with some of our partner’s mindware. Voila, there are fertile offspring and the species persona creatus is alive. Furthermore, since purely digital people can reproduce with flesh humans in this manner, the humans and the transhumans are common members of persona creatus.

Freedom of gender is, therefore, the gateway to a freedom of form and to an explosion of human potential. First comes the realization that we are not limited by our gross sexual anatomy. Then comes the awakening that we are not limited by our anatomy at all. The mind is the substance of humanity. Mind is deeper than matter.